Atividade probatória no confisco alargado: standard e inversão do ônus da prova

Abstract

Although extended confiscation had been on the legislative agenda for several years, it was officially implemented in the Penal Code through Law 13.964/2019, popularly known as the "Anti-Crime Law.", which introduced significant changes to Brazilian criminal and procedural law. It represents a new consequence of criminal conviction, broadening the scope of the "classic confiscation," which entails the forfeiture of the proceeds or benefits of a crime, as traditionally provided for in Article 91, section II, paragraph 'b' of the Penal Code. With the addition of article 91-A, this forfeiture can now also apply to the difference between the total assets of a convicted person and what would be compatible with their lawful income, provided the individual is convicted of crimes, carrying a maximum sentence of over six years. Since its inception, extended confiscation has faced criticism from scholars, who argue that it seemingly shifts the burden of proof onto the defendant, requiring them to prove the legality of their assets, and thus upending the well-established principle in criminal proceedings that it is the prosecution’s duty to prove the facts. This study seeks to analyze the evidentiary aspects of extended confiscation. It starts from the hypothesis that this measure is not unconstitutional because it has an extrapenal legal nature. This hypothesis was confirmed through a literature review and the use of the inductive method. The study begins with a brief overview of the legislative history of extended confiscation, both nationally and internationally, to understand its original contours and purpose. It then takes a position on the constitutionality of the measure, addressing counterarguments from legal scholars as well as those raised in the still-pending Direct Actions of Unconstitutionality (ADIs 6304 and 6345) before the Brazilian Supreme Federal Court (STF). It also defends that there is no real reversal of the burden of proof, as the dynamics of evidentiary responsibilities remain unchanged: the prosecution must demonstrate the measure's applicability, based on the standard of clear and convincing evidence. However, considering the role of legal presumptions in evidentiary matters, it is shown that the wording of article 91-A, which does not limit the application of the measure to specific crimes or organized criminality, disrupts the connection between the foundational fact (asset incompatibility) and its legal consequence (asset illegality). Therefore, the study concludes with proposals to improve the evidentiary procedures for extended confiscation, aiming to restore the rationality that should underpin asset forfeiture – especially when based on presumptions.